David Bainbridge from Bidwells outlines the areas to be aware of if changes to a planning permission are being proposed.
Changes are often required to planning permissions and this can throw up uncertainty, risk and potential cost. A typical scenario is land with planning permission which is sold and the new owner wants changes to be made prior to or during development.
A developer will approach implementation of a planning permission differently from consideration of a planning permission by a non-developing landowner or promoter of land.
Changes to planning permission
Changes to a planning permission can fall into two categories – non-material amendment (NMA) or minor material amendment (MMA).
A NMA application is made under Section 96A of the Town and Country Planning Act 1990. There is no statutory definition of what is non-material and so this is for the planning authority to decide but examples often include changes to house types. A NMA does not alter the planning permission already in place, but if granted, it should give comfort that the changes will not be the subject of planning enforcement.
A MMA application is made under Section 73 of the 1990 Act to vary or remove conditions associated with a planning permission. However it cannot extend the time limit within which a development must start or reserved matters be made to the planning authority. As such, sufficient time is needed to get through the additional application process to allow a start to be made on site.
There is no statutory definition of a MMA but guidance says that the scale and nature of the changes should not substantially differ from the development approved.
Minor material amendments are often made to a planning condition which lists documentation approved by the planning permission. For example this can change the masterplan which informs preparation of reserved matters, or it can change the timing and scope of submissions to be made under conditions.
Areas of risk
There is risk involved with these applications as the planning authority has to consider the proposal against up-to-date planning policy and planning guidance before arriving at its decision. Therefore it is advisable to undertake a full audit of such matters before progressing.
Planning obligations under S.106, the Community Infrastructure Levy (CIL) and changes to design standards in the intervening period between the grant of planning permission and proposed changes, are key areas of risk.
Check whether the existing S.106 includes a S.73 clause thereby avoiding an additional or varied deed, otherwise any newer more onerous planning obligations may be triggered.
The interplay between minor material amendments and CIL is not straight-forward as this depends when CIL was brought into effect by the planning authority and what the changes in the development are. If CIL was introduced after the grant of planning permission, changes to the regulations have clarified that only additional floor area will be liable to pay the levy – however this needs discussing with the planning authority.
Design standards can change in the intervening period between the grant of planning permission and changes to be made to the permission. Areas include development density, parking standards and internal and external space standards.
Increases in residential planning permissions are to be welcomed but plotting a way through changes to the permission needs careful consideration.
